Legal Report

Courts explore sanctions against flawed reasoning.

The extent of the requirement to give reasons for the grant of planning permission has been the subject of some uncertainty since it was added to the General Development Procedure Order (GDPO) 1995 in 2003.

Despite a series of successful court challenges against defective permissions, many planning authorities continue to issue notices that fall short of the mark. But objectors frequently fail to spot such defects and so miss the chance to avoid or delay schemes of which they disapprove. Now a flurry of cases in the administrative courts offers useful guidance for all involved in or affected by the decision-making process.

This includes local authorities still unsure of how to comply with the requirement, developers deciding whether to proceed with schemes for which planning permission has recently been granted and opponents assessing the prospects of successful challenge in the courts. So just what is the obligation and what are the consequences of failing to meet it?

Summary of reasons required

Article 22(1)(b) of the GDPO requires authorities to provide a "summary of their reasons" for the grant of planning permission. It is instructive to consider the rationale behind it. In R (Wall) v Brighton and Hove City Council [2005], Mr Justice Sullivan identified its principal purpose as the need to involve the public in the decision-making process further by providing some explanation of an authority's decision.

But this is not the only benefit. The summary of reasons also allows developers to assess the likelihood of planning permission being successfully challenged and hence the dangers of proceeding to build while relying on it. Equally, the intellectual exercise involved in drafting the required reasons is useful to the authority, increasing the likelihood that its decision is reached logically.

More direct guidance arises out of a series of recent cases and four propositions may be advanced. The first is that it will not be sufficient simply to include a reference to another document, such as the officer's report, in a permission. This was done in R (Chisnell) v London Borough of Richmond-upon-Thames [2005] and the planning permission was quashed. The reasons must be contained in the permission itself.

Second, the adequacy of reasons will always depend on the individual circumstances of the case. But reasons should deal with the main substantive issues that are raised by the application. So where a number of objections have been lodged or where permission has been granted contrary to the recommendation of officers, the summary of reasons will need to reflect this and deal with it. This was shown in R (Midcounties Co-operative Ltd) v Forest of Dean District Council [2007].

By contrast, in entirely straightforward cases where there have been no objections, it may suffice to state that the proposal is consistent with the development plan and there are no material considerations pointing elsewhere. Planning permission was upheld in such circumstances in R (Ling) v East Riding of Yorkshire Council [2006].

It would undoubtedly be prudent to include a note that no objections were lodged. As Mr Justice Collins observed in R (Tratt) v Horsham District Council [2007], reliance on an absence of objections is a dangerous approach for councils to take, increasing the likelihood of complaints about the reasoning.

Formulaic approach poses risk

Third, it is evident that a "mantra" or standard formula of the nature apparently adopted by many authorities will be unacceptable in most cases. Ultimately, the proper approach is a matter of judgement in every different case. Where there is any doubt, authorities would do well to remember that they are unlikely to be criticised for providing too much detail. This is perhaps one of those rare cases where too much is better than too little.

The fourth and final point is that defective permission will not necessarily mean a quashing order. The court's decision will depend on all the circumstances of the case. While the question of prejudice suffered by the person seeking judicial review will be relevant, as it was in Ling, it is not requisite to success.

In Wall, the judge commented that a defective permission should be quashed unless there is good reason not to. Furthermore, where there is the slightest possibility that the authority will reach a different decision when it redetermines an application, a claim for judicial review is likely to be difficult to resist.

Harry Spurr is a professional support lawyers at Lovells LLP.

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